On May 12, 2016, the Occupational Safety & Health Administration (OSHA) issued a Final Rule imposing new obligations on employers with regard to reporting workplace illnesses and injuries.
Under the new rule, certain employers will be required to electronically submit injury and illness data to OSHA. Specifically, employers with 250-plus employees must electronically submit to OSHA on an annual basis information from Forms 300, 300A and 301. Employers with 20 to 249 employees that are in one of several specified “high hazard” industries (such as manufacturing and construction) must submit the information from OSHA Form 300A electronically on an annual basis. For the first reporting period ending July 1, 2017, all employers required to electronically submit 2016 data will only need to submit the information from OSHA form 300A. For the second reporting period ending July 1, 2018, covered employers with 250-plus employers must submit information from OSHA forms 300 and 301 in addition to the information from the 300A. Employers must use the specified forms and they may no longer use equivalent forms – such as insurance and accident investigation forms – as they have been permitted to do in the past.
According to OSHA, the purpose of the new reporting requirements is to “nudge” employers into focusing on safety because, the agency believes, they are more likely to do so if injury data is publicly available.
OSHA’s rule also prohibits employers from discouraging workers from reporting an injury or illness, requires employers to have a program for employees to report injuries or illnesses and requires employers to inform employees of that program and of their right to report work-related injuries and illnesses free from retaliation. The rule also requires employers to communicate injury and illness data to employees and to provide employees with access to the company’s OSHA recordkeeping logs. These provisions are effective as of August 10, 2016.
Employers should be aware that OSHA intends to scrutinize disciplinary policies and procedures to ensure that they do not discourage employees from reporting illnesses or injuries. While no policies were declared unlawful per se, OSHA indicated that the following policies are likely unlawful because they have the potential to discourage an employee from reporting an injury or illness: (1) policies providing for discipline if an employee fails to immediately report a work-related illness or injury; (2) certain safety incentive programs; and (3) blanket policies that require drug and alcohol testing for all workplace accidents or injuries.
There will likely be litigation over the legality of the new rule, including both the substance of the rule and the procedures by which it was passed. In the meantime, employers should become familiar with their company’s specific reporting requirements under the rule. Further, companies should review disciplinary policies and procedures to ensure that they do not deter employees from reporting workplace injuries or illnesses. They should review their internal procedures for reporting workplace illnesses and injuries and make sure those procedures are communicated to employees, along with the message that employees will not be punished for reporting workplace injury or illness.
For more information on how this or other laws may affect your business, contact Kenneth D. Kleinman at 215.751.1946 , Brad M. Kushner at 215.751.1949, or the Stevens & Lee attorney with whom you normally consult for labor and employment matters.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
